Rodger Haines QC, Deputy Chairperson, New Zealand Refugee Status Appeals Authority INTRODUCTION

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1 Please note that this paper is a work in progress. Arguments raised at the San Remo Expert Roundtable and comments received may be further incorporated into this article. The final version of the article will be produced after the San Remo Roundtable. (UNHCR)

2 GENDER-RELATED PERSECUTION 1 Draft: 10 August 2001 Rodger Haines QC, Deputy Chairperson, New Zealand Refugee Status Appeals Authority INTRODUCTION 1. The principle of non-discrimination has been correctly described as fundamental to the concept of human rights. 2 It is specifically affirmed, for example, in the Preamble to the United Nations Charter, 3 the Universal Declaration of Human Rights, 1948 (UDHR), 4 the International Covenant on Civil and Political Rights, 1966 (ICCPR), 5 and the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW). 6 The principle of equality and the prohibition of discrimination has been reaffirmed and strengthened in a multitude of international human rights treaties. Observance, however, has been far from exemplary and this is no less true in the case of the Refugee Convention. 7 It has not always been recognised that women and the girl-child enjoy the equal protection of the Refugee Convention. 2. However, from at least 1985 a concerted effort has been made by the UNHCR to correct this inequity and the Executive Committee of the High Commissioner s Programme has called on States to recognise that women who are victims of violence and persecution are in need of protection. 8 The General Conclusion on 1 This paper was commissioned by UNHCR as a background paper for an expert roundtable discussion on gender-related persecution organised as part of the Global Consultations on International Protection in the context of the 50 th anniversary of the 1951 Convention relating to the Status of Refugees. 2 Paul Sieghart, The International Law of Human Rights (Clarendon Press Oxford 1990) 75 and see also Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel 1993) 458, 460; Along with liberty, equality is the most important principle imbuing and inspiring the concept of human rights ; The principle of equality and the prohibition of discrimination runs like a red thread through the [ICCPR]. religion: Article 1(3). 3 The United Nations Charter also includes sex among the prohibited grounds of discrimination alongside race, language and 4 Universal Declaration of Human Rights, Articles 2 and 7. 5 International Covenant on Civil and Political Rights, 1966, Articles 2(1), 3 & Convention on the Elimination of All Forms of Discrimination Against Women, 1979, Articles 1, 2, 3, 4, & 5. 7 The Convention relating to the Status of Refugees, 1951 and the Protocol relating to the Status of Refugees, 1967 will be referred to in this paper as the Refugee Convention. 8 See for example, EXCOM Conclusion No. 39 (XXXVI) Refugee Women and International Protection (1985) paras (b) & (k) which welcomed the recommendations regarding the situation of refugee and displaced women adopted by the World Conference to Review and Appraise the Achievements of the United Nations Decade for Women held in Nairobi (Kenya) in July 1985 and (inter alia) recognised that States, in the exercise of their sovereignty, are free to adopt the interpretation that women asylum-seekers who face harsh or inhuman treatment due to their having transgressed the social mores of the society in which they live may be considered as a particular social group within the meaning of Article 1A(2) of the Refugee Convention. Subsequent UNHCR initiatives include the Guidelines on the Protection of Refugee Women (July 1991), UNHCR, Sexual Violence Against Refugees: Guidelines on Prevention and Response (1995), the Symposium on Gender-Based Persecution held at Geneva February 1996 (reported in (1997) IJRL Special Issue 1-251) and UNHCR, Gender-

3 International Protection adopted in October 1995 by the Executive Committee:... calle[d] upon the High Commissioner to support and promote efforts by States towards the development and implementation of criteria and guidelines on responses to persecution specifically aimed at women... In accordance with the principle that women s rights are human rights, these guidelines should recognise as refugees women whose claim to refugee status is based upon well-founded fear of persecution for reasons enumerated in the 1951 Convention and 1967 Protocol, including persecution through sexual violence or gender-related persecution In the past decade the analysis and understanding of sex and gender in the refugee context has advanced substantially in the case law 10, in state practice 11 and in academic writing. 12 These developments have run parallel to, and have been assisted by, developments in international human rights law and in international humanitarian law and in particular the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia and of the International Criminal Tribunal for Rwanda. 13 The Rome Statute of the International Criminal Court has also been significant in explicitly recognising sexual violence as a crime against humanity and as a war crime. 14 As in other aspects of the refugee definition, state practice in relation to sex and gender issues in the refugee context varies but overall demonstrates convergence on the principle of a gender-inclusive and gender-sensitive interpretation of the 1951 Refugee Related Persecution (UNHCR Position Paper, 24 November 1999). 9 UN doc A/AC.96/878, IIIA.1.(o) and see generally UNHCR Division of International Protection, Gender-Related Persecution: An Analysis of Recent Trends (1997) IJRL Special Issue See also the Platform for Action adopted at the Beijing Fourth World Conference on Women in September 1995, particularly para 136 which called upon States to consider recognising as refugees women who face persecution. 10 See for example Matter of Kasinga Int. Dec (BIA 1996) (USA); R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 AC 629 (HL); Minister for Immigration and Multicultural Affairs v Khawar (2000) 178 ALR 120 (FC:FC) (Australia); Refugee Appeal No /99 [2000] NZAR 545; [2000] INLR 608 (NZRSAA). These decisions are discussed in Deborah Anker, Refugee Status and Violence Against Women in the Domestic Sphere: The Non-State Actor Question? (2001) 15 Geo. Immigr. L.J See for example Immigration and Refugee Board, Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (November 25, 1996) (Canada); Immigration and Naturalization Service, Gender Guidelines: Considerations for Asylum: Considerations for Asylum Officers Adjudicating Asylum Claims from Women (26 May 1995) (USA). For recent developments see INS Issues Proposed Rule on Gender - And Domestic Violence-Based Asylum Claims 77 Interpreter Releases 1737 (Dec. 18, 2000); Department of Immigration and Multicultural Affairs, Guidelines on Gender Issues for Decision Makers (July 1996) (Australia); Dutch Immigration and Naturalisation Service, Work Instruction No. 148: Women in the Asylum Procedure (1997) (The Netherlands); Immigration Appellate Authority, Asylum Gender Guidelines (November 2000) (UK). The Swedish legislature inserted a specific provision in the Aliens Act in 1997 that people persecuted on account of their gender are entitled to a humanitarian residence permit. A 1998 amendment to the Swiss Asylum Act stipulates that gender-specific flight motives must be taken into account and the agreement constituting the basis for the new German government in 1998 also contains specific rules with regard to gender persecution: Thomas Spijkerboer, Gender and Refugee Status (Ashgate 2000) 3. The Refugee Act 1996 (Ireland) s 1(1) defines membership of a particular social group so as to include membership of a group of persons whose defining characteristic is their belonging to the female or the male sex. 12 For the two most recent and notable examples, see Thomas Spijkerboer, Gender and Refugee Status (Ashgate 2000) and Heaven Crawley, Refugees and Gender: Law and Process (Jordans 2001). For a discussion of USA law, see Deborah E. Anker, Law of Asylum in the United States 3 rd ed (Refugee Law Center 1999) ; ; and Pamela Goldberg, Analytical Approaches in Search of Consistent Application: A Comparative Analysis of the Second Circuit Decisions Addressing Gender in the Asylum Law Context (2000) 66 Brook. L. Rev For a recent discussion see Erik Møse, The Criminality Perspective (2001) 15 Geo. Immigr. L.J Rome Statute of the International Criminal Court, Articles 7 and 8. 3

4 Convention Experience has shown that a gender-inclusive and gender-sensitive interpretation of the Refugee Convention does not lead inexorably to the consequence that all women are automatically entitled to refugee status. 16 The refugee claimant must still establish that the fear of persecution is well-founded, that the nature of the harm anticipated rises to the level of serious harm, that there will be a failure of state protection and that the well-founded fear of being persecuted is for reasons of race, religion, nationality, membership of a particular social group or political opinion. The refugee status inquiry is always individual; it is always particularised. THE INTERPRETATION OF ARTICLE 1A(2) 5. Neither the refugee definition nor the Refugee Convention in general refers to sex or gender. 17 This omission is without significance: (a) (b) The ordinary meaning of Article 1A(2) of the Refugee Convention in its context and in the light of the object and purpose of the Convention require the conclusion that the Convention protects both women and men and that it must therefore be given a gender-inclusive and gender-sensitive interpretation; 18 and Article 26 of the ICCPR confers an independent right to equality before the law and to the equal protection of the law over and above the accessory prohibition of discrimination in Article 2 of the ICCPR See for example, Anne Leiss & Ruby Boesjes, Female Asylum-Seekers: A Comparative Study Concerning Policy and Jurisprudence in the Netherlands, Germany, France, the United Kingdom and also dealing summarily with Belgium and Canada (Dutch Refugee Council April 1994) 94; Julie Bissland & Kathleen Lawand, Report of the UNHCR Symposium on Gender-Based Persecution (1997) IJRL Special Issue 13, Chantal Bernier, The IRB Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution (1997) IJRL Special Issue 167, 168. Canada, which has the longest experience with guidelines on women refugee claimants has not detected any noticeable effect on the number of gender-related claims in Canada. The experience of the USA has been similar. See Deborah E Anker, Law of Asylum in the United States 3 rd ed (Refugee Law Centre 1999) 254 fn The non-discrimination provision of the Refugee Convention, namely Article 3 refers only to race, religion and country of origin as prohibited grounds of discrimination. 18 Vienna Convention on the Law of Treaties, 1969, Article 31 and see also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (HCA) per McHugh J. Article 31(1) provides that: A treaty shall be interpreted in good faith and in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. See also UNHCR, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees (April 2001) paras 2 to Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel 1993) 465. Article 26 of the ICCPR provides: 4

5 Universal access to refugee protection regime 6. Article 1A(2) of the Refugee Convention relevantly prescribes an inquiry into whether the refugee claimant is a person who:... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country As can be seen from the face of the text, this definition applies to all persons without distinction as to sex, age, disability, sexual orientation, marital status, family status, race, religious belief, ethnic or national origins, political opinion or any other status or characteristic. The only categories of persons who are not included in the definition are those described in the cessation provisions of Article 1C and the exclusion provisions of Articles 1D, E and F. Even then, none of these provisions make any distinction between individuals on the basis, for example, of their sex, age, disability, sexual orientation, marital or family status, race, political opinion, religious or ethical belief. 8. The intention to provide universal access to the refugee regime is expressly affirmed by the first and second recitals in the Preamble to the Refugee Convention: Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination, Considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms. Focus of inquiry is on specific characteristics and circumstances of the claimant 9. While access to the refugee protection regime is universal, the refugee definition is strict and requires a highly specific examination of the particular characteristics and circumstances of the refugee claimant. It must be demonstrated that the individual has a well-founded fear of being persecuted and that that fear is for at least one of the five reasons enumerated in the definition. In more general terms, the inquiry is into who the individual is or what he or she believes and the reason why that person is unable or unwilling to avail him or herself of the protection of the country of origin. Both sex and gender are an inherent aspect of the question whether the claimant meets the refugee definition. All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 5

6 Sex and Gender an integral element of refugee inquiry 10. The purpose of the Refugee Convention is to provide surrogate protection to men, women and children from persecution. Because men, women and children can be persecuted in different ways and because Article 1A(2) demands an inquiry into the specific characteristics and circumstances of the individual claimant, the sex and/or age of the refugee claimant are integral elements of the refugee inquiry. 11. Equally integral are the power structures in the country of origin and in particular the civil, political, social and economic position of the refugee claimant. In this context, the term gender refers to the social construction of power relations between women and men, and the implications of these relations for women s (and men s) identity, status, roles and responsibilities (in other words, the social organisation of sexual difference). 20 Gender is not static or innate but acquires socially and culturally constructed meaning because it is a primary way of signifying relations of power. 21 Gender relations and gender differences are therefore historically, geographically and culturally specific, so that what it is to be a woman or man varies through space and over time. Any analysis of the way in which gender (as opposed to biological sex) shapes the experiences of asylum-seeking women must therefore contextualise those experiences. 22 Gender is a social relation that enters into, and partly constitutes, all other social relations and identities. Women s experiences of persecution, and of the process of refugee determination, will also be shaped by differences of race, class, sexuality, age, marital status, sexual history and so on. Looking at gender, as opposed to sex enables an approach to the refugee definition which can accommodate specificity, diversity and heterogeneity Gender-related persecution refers to the experiences of women who are persecuted because they are women, ie because of their identity and status as women. Genderspecific persecution refers to forms of serious harm which are specific to women. 24 The two may, however, overlap. The first will be discussed in the context of the for reasons of and Convention grounds elements. The second will be discussed in the section on Persecution. Importance of the 1967 Protocol 13. The 1967 Protocol not only removed the 1 January 1951 dateline and the geographic limitation, it fundamentally transformed the Refugee Convention from a document 20 Heaven Crawley, Refugees and Gender: Law and Process (Jordans 2001) 6; Refugee Women s Legal Group (RWLG), Gender Guidelines for the Determination of Asylum Claims in the UK (July 1998) para 1.8; UNHCR, Gender-Related Persecution (UNHCR Position Paper, 24 November 1999) Heaven Crawley op cit 7; RWLG op cit para Heaven Crawley op cit 7; RWLG op cit para RWLG, Gender Guidelines for the Determination of Asylum Claims in the UK (July 1998) para Heaven Crawley, Refugees and Gender: Law and Process (Jordans 2001) 7. 6

7 fixed to a specific moment in history into a human rights instrument which addresses contemporary forms of human rights abuses which are properly called persecution. 25 Sex and gender already included in the Refugee Convention 14. The text, object and purpose of the Refugee Convention require a gender-inclusive and gender-sensitive interpretation. Sex and gender are already included in the refugee definition. If sight of this fact is lost, a misconceived interpretation can reflect and reinforce gender biases leading to the marginalisation of women in the refugee context. 26 It has been suggested that sex or gender be added as a sixth ground to the Refugee Convention. Quite apart from the fact that there is no realistic prospect of the Convention being expanded in this way, the argument in favour of a sixth ground may have the unintended effect of further marginalising women if misinterpreted as an implicit concession that sex and gender have no place in refugee law at the present. 27 The failure of decision-makers to recognise and respond appropriately to the experiences of women stems not from the fact that the Refugee Convention does not refer specifically to persecution on the basis of sex or gender, but rather because it has often been approached from a partial perspective and interpreted through a framework of male experiences. 28 The main problem facing women as asylum-seekers is the failure of decision-makers to incorporate the gender-related claims of women into their interpretation of the existing enumerated grounds and their failure to recognise the political nature of seemingly private acts of harm to women. 29 PERSECUTION Understanding the meaning of persecution 15. Underlying the Refugee Convention is the international community s commitment to the assurance of basic human rights without discrimination. 30 But the Convention does not protect persons against any and all forms of even serious harm. 31 There must 25 Vienna Convention on the Law of Treaties, 1969 Article 31(3)(a) specifically provides that there shall be taken into account, together with the context, any subsequent agreement between the parties regarding the interpretation of the Treaty or the application of its provisions. 26 Heaven Crawley, Refugees and Gender: Law and Process (Jordans 2001) 4-5; UNHCR, Gender-Related Persecution (UNHCR Position Paper, 24 November 1999) Thomas Spijkerboer, Women and Refugee Status: Beyond the Public/Private Distinction (Emancipation Council, The Hague, September 1994) 68; UNHCR, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees (April 2001) para Heaven Crawley, Refugees and Gender: Law and Process (Jordans 2001) Ibid 35. (SC:Can). 30 Preamble (first and second recitals) to the Refugee Convention; Canada (Attorney General) v Ward [1993] 2 SCR 689, James C Hathaway, The Law of Refugee Status (Butterworths 1991)

8 be a risk of a type of harm that would be inconsistent with the basic duty of protection owed by a state to its own population. 32 The dominant view is that refugee law ought to concern itself with actions which deny human dignity in any key way, and that the sustained or systemic denial of core human rights is the appropriate standard. 33 Persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements recognised by the international community The relevant core human rights are those contained in the so-called international bill of rights comprising the Universal Declaration of Human Rights, 1948 (UDHR) and by virtue of their almost universal accession, the International Covenant on Civil and Political Rights, 1966 (ICCPR) and the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR). 35 To these must be added the Convention on the Elimination of All Forms of Racial Discrimination, 1966 (CERD), the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW) and the Convention on the Rights of the Child, 1989 (CRC) Four distinct types of obligation have been identified. First are those rights stated in the UDHR and translated into immediately binding form in the ICCPR, and from which no derogation whatsoever is permitted, even in times of compelling national emergency. These include freedom from arbitrary deprivation of life; protection against torture or cruel, inhuman or degrading punishment or treatment; freedom from slavery; the right to recognition as a person in law and freedom of thought, conscience and religion Second are those rights enunciated in the UDHR and translated into binding and enforceable form in the ICCPR, but from which states may derogate during a public emergency which threatens the life of the nation and the existence of which is officially proclaimed. 38 These include freedom from arbitrary arrest or detention; 32 Ibid Ibid 108 approved in Canada (Attorney General) v Ward [1993] 2 SCR 689, 733 (SC:Can). 34 James C Hathaway, The Law of Refugee Status (Butterworths 1991) , 112 approved in Horvath v Secretary of State for the Home Department [2000] 3 WLR 381, 383F, 389A, 399H, 404F (HL); [2000] 3 All ER 577, 581d, 586h, 597f, 602c (HL) and in Refugee Appeal No /99 [2000] NZAR 545; [2000] INLR 608 at [51] (NZRSAA) and see Heaven Crawley, Refugees and Gender: Law and Process (Jordans 2001) 40-42; RWLG, Gender Guidelines for the Determination of Asylum Claims in the UK (July 1998) para 1.17; Immigration Appellate Authority, Asylum Gender Guidelines (November 2000) (UK) para James C Hathaway, The Law of Refugee Status (Butterworths 1991) James C Hathaway, The Relationship Between Human Rights and Refugee Law: What Refugee Law Judges Can Contribute published in The Realities of Refugee Determination on the Eve of a New Millennium: The Role of the Judiciary (Proceedings of the 1998 Conference of the International Association of Refugee Law Judges, October 1998) 80, 85-90; Refugee Appeal No /99 [2000] NZAR 545; [2000] INLR 608 at [51] (NZRSAA). 37 James C Hathaway, The Law of Refugee Status (Butterworths 1991) 109; Heaven Crawley, Refugees and Gender: Law and Process (Jordans 2001) 40; RWLG, Gender Guidelines for the Determination of Asylum Claims in the UK (July 1998) para 1.20; Immigration Appellate Authority, Asylum Gender Guidelines (November 2000) (UK) para 2A James C Hathaway, The Law of Refugee Status (Butterworths 1991)

9 equal protection of the law; fair criminal proceedings; personal and family privacy and integrity; freedom of internal movement; the right to leave and return; freedom of opinion, expression, assembly and association; the right to form and join trade unions; the ability to partake in government; access to public employment without discrimination and the right to vote Third are those rights contained in the UDHR and carried forward into the ICESCR. In contrast to the ICCPR, the ICESCR does not impose absolute and immediately binding standards of attainment, but rather requires states to take steps to the maximum of their available resources to progressively realise rights in a nondiscriminatory way. Examples of this third category of rights are the right to work, the right to food, clothing, housing, medical care, social security and basic education; protection of the family, particularly children and mothers. While the standard of protection is less absolute than that which applies to the first two categories of rights, the state is in breach of its basic obligations where it either ignores these interests notwithstanding the fiscal ability to respond, or where it excludes a minority of its population from their enjoyment. 40 Moreover, the deprivation of certain of the socioeconomic rights, such as the ability to earn a living or the entitlement to food, shelter or health care will, at a certain level, be tantamount to the deprivation of life or cruel, inhuman or degrading treatment and unquestionably constitute persecution. 41 Economic, social and cultural rights have particular impact on standards of living and are directly relevant in the context of refugee claims by women and children 42. It cannot be assumed that because these rights are third category rights that they are of any less significance in the refugee inquiry than first and second category rights. 20. Fourth are the rights recognised in the UDHR but not codified in either of the 1966 covenants. These rights include the right to private property and protection against unemployment Whether the anticipated harm rises to the level of persecution depends not on a rigid or mechanical application of the categories of rights, but on an assessment of a complex set of factors which include not only the nature of the right threatened, but also the nature of the threat or restriction and the seriousness of the harm threatened. It must also be remembered that all human rights and fundamental freedoms are 39 James C Hathaway, The Law of Refugee Status (Butterworths 1991) ; Heaven Crawley, Refugees and Gender: Law and Process (Jordans 2001) 40; Immigration Appellate Authority, Asylum Gender Guidelines (November 2000) (UK) para 2A James C Hathaway, The Law of Refugee Status (Butterworths 1991) Ibid 111. See further also the discussion by Rosalyn Higgins, Problems and Process: International Law and How We Use It (Clarendon Press 1995) Steiner & Alston, International Human Rights in Context: Law, Politics, Morals - Text and Materials 2 nd ed (Oxford 2000) 43 James C Hathaway, The Law of Refugee Status (Butterworths 1991) 111; Heaven Crawley, Refugees and Gender: Law and Process (Jordans 2001) 40. 9

10 universal, indivisible, interdependent and interrelated. 44 Persecution = Serious Harm + The Failure of State Protection 22. Whether an individual faces a risk of persecution requires identification of the serious harm faced in the country of origin and an assessment of the state s ability and willingness to respond effectively to that risk. 45 Persecution is the construct of two separate but essential elements, namely risk of serious harm and failure of protection. This can be expressed in the formula that: Persecution = Serious Harm + The Failure of State Protection. 46 Serious harm 23. Women often experience persecution differently from men. 47 In particular, they may be persecuted through sexual violence or other gender-specific or gender-related persecution. 48 Such violence must be given a broad interpretation and may be defined as any act of gender-related violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life. 49 Violence against women is to be understood to encompass, but not be limited to: 50 (a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices 44 Vienna Declaration and Programme of Action adopted at the World Conference on Human Rights (A/CONF.157/24, 25 June 1993), Chapter 1, para 5 and the Platform for Action adopted at the Beijing Fourth World Conference on Women (A/CONF.177/20, 17 October 1995), Chapter 1, para 2. Reference may also be made to the General Comments of the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee Against Torture and the General Recommendations of the Committee on the Elimination of All Forms of Discrimination Against Women and of the Committee on the Elimination of Racial Discrimination. 45 James C Hathaway, The Law of Refugee Status (Butterworths 1991) RWLG, Gender Guidelines for the Determination of Asylum Claims in the UK (July 1998) para 1.17 approved in R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 AC 629, 653F (HL) and Horvath v Secretary of State for the Home Department [2000] 3 WLR 381, 403B (HL); [2000] 3 All ER 577, 600h (HL) and Refugee Appeal No /99 [2000] NZAR 545; [2000] INLR 608 at [67] (NZRSAA); Deborah Anker, Refugee Status and Violence Against Women in the Domestic Sphere: The Non-State Actor Question (2001) Geo. Immigr. L.J EXCOM Conclusion No. 73 (XLIV) Refugee Protection and Sexual Violence (1993) paras (d) & (e). 48 EXCOM Conclusion No. 77 (XLVI) General (1995) para (g); EXCOM Conclusion No. 79 (XLVII) General Conclusion on International Protection (1996) para (o); EXCOM Conclusion No. 81 (XLVIII) General Conclusion on International Protection (1997) para (t); EXCOM Conclusion No. 87 (L) General Conclusion on International Protection (1999) para (n). 49 Declaration on the Elimination of Violence Against Women, 1994 (UN General Assembly Resolution A/RES/48/104, 20 December 1993), Article 1. It is well established that persecution may involve physical or mental ill-treatment. See for example R v Secretary of State for the Home Department; Ex parte Sasitharan [1998] Imm AR 487, (Sedley J); Abdulaziz Faraj v Secretary of State for the Home Department [1999] INLR 451, 456 (CA); Khawar v Minister for Immigration and Multicultural Affairs (1999) 168 ALR 190 para [37] upheld on appeal in Minister for Immigration and Multicultural Affairs v Khawar (2000) 178 ALR 120 (FC:FC). 50 Ibid Article 2; UNHCR Gender-Related Persecution (UNHCR Position Paper, 24 November 1999)

11 harmful to women, non-spousal violence and violence related to exploitation; (b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution; 51 (c) Physical, sexual and psychological violence perpetrated or condoned by the state, where ever it occurs. Discrimination 24. Differences in the treatment of various groups do exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. Discrimination on its own is not enough to establish a case for refugee status. A distinction must be drawn between a breach of human rights and persecution. Not every breach of a refugee claimant s human rights constitutes persecution. 52 It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned. 53 However, discrimination can affect individuals to different degrees and it is necessary to recognise and to give proper weight to the impact of discriminatory measures on women. Various acts of discrimination, in their cumulative effect, can deny human dignity in key ways and should properly be recognised as persecution for the purposes of the Refugee Convention Discrimination against women as defined in CEDAW means any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis on equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil and any other field Gender-based violence, which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions, is discrimination within the meaning of the CEDAW For a definition of trafficking, see the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially and Children, Supplementing the United Nations Convention Against Transnational Organised Crime, 2000, Article James C Hathaway, The Law of Refugee Status (Butterworths 1991) UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1979) para 54; UNHCR, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees (April 2001) para Refugee Appeal No /99 [2000] NZAR 545; [2000] INLR 608 at [51] (NZRSAA). 55 Convention on the Elimination of All Forms of Discrimination Against Women (1979) Article CEDAW, General Recommendation 19: Violence Against Women (1992) para 7. This Recommendation states that the definition of discrimination in Article 1 of the Convention on the Elimination of all Forms of Discrimination Against Women includes 11

12 The failure of state protection 27. While persecution may be defined as the sustained or systemic violation of basic human rights demonstrative of a failure of state protection, the refugee definition does not require that the state itself be the agent of harm. Persecution at the hands of private or non-state agents of persecution equally falls within the definition. The state s inability to protect the individual from persecution constitutes failure of local protection. 57 There are four situations in which it can be said that there is a failure of state protection: (a) (b) (c) (d) Persecution committed by the state concerned; Persecution condoned by the state concerned; Persecution tolerated by the state concerned; Persecution not condoned or not tolerated by the state concerned but nevertheless present because the state either refuses or is unable to offer adequate protection. 28. State complicity in persecution is not a prerequisite to a valid refugee claim. 58 The standard of state protection 29. The refugee inquiry is not an inquiry into blame 59. Rather the purpose of refugee law is to identify those who have a well-founded fear of persecution for a Convention reason. The level of protection provided by a state should be such as to reduce the risk to a refugee claimant to the point where the fear of persecution could be said to be no longer well-founded. Otherwise an individual who holds a well-founded fear of being persecuted for one of the five reasons stated in the Refugee Convention will be expelled or returned to the frontiers of territories where his or her life or freedom gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. Gender-based violence may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence. See para 6 of General Recommendation 19. The text of the Recommendation is reproduced in Joseph, Shultz & Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (Oxford 2000) Canada (Attorney General) v Ward [1993] 2 SCR 689, 709, (SC:Can); UNHCR, Gender-Related Persecution (UNHCR Position Paper, 24 November 1999) 5; UNHCR, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees (April 2001) para UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1979) para 65; UNHCR, An Overview of Protection Issues in Western Europe: Legislative Trends and Positions Taken by UNHCR (European Series Vol. 1, No. 3, September 1995) 27-30; Adan v Secretary of State for the Home Department [1999] 1 AC 293, 306A (HL); R v Secretary of State for the Home Department; Ex parte Adan [2001] 2 WLR 143, 147F, , 168 (HL); R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 AC 629 (HL) and Horvath v Secretary of State for the Home Department [2000] 3 WLR 381 (HL); [2000] 3 All ER 577 (HL); Walter Kälin, Non-State Agents of Persecution and the Inability of the State to Protect (2001) 15 Geo. Immigr. L.J. 415 and Reinhard Marx, The Notion of Persecution by Non-State Agents in German Jurisprudence (2001) 15 Geo. Immigr. L.J This is reflected in the wish expressed in the Preamble to the Refugee Convention that... all States, recognizing the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between States. 12

13 would be threatened in breach of the non-refoulement obligation. 60 A refugee claimant is not required to risk his or her life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness. 61 The proper approach to the question of state protection is to enquire whether the protection available from the state will reduce the risk of serious harm to below the level of well-foundedness. The duty of the state is not, however, to eliminate all risk of harm. 62 But before it can be said that the refugee claimant can access state protection, that protection must be meaningful, accessible, effective and available to all regardless of sex, race, ethnicity, sexual orientation, disability, religion, class, age, occupation or any other aspect of identity. In some cases there may be protection in theory, but not in actual practice. 63 Cultural relativism 30. Suffering and abuse are not culturally authentic values and cannot be justified in the name of cultural relativism. 64 Whether the harm threatened is sufficiently serious to be described as persecution must be measured against the core human rights entitlements recognised by the international community. Breaches of human rights cannot be ignored, discounted or explained away on the basis of culture, tradition or religion. 31. The Declaration on the Elimination of Violence Against Women, 1994 stipulates that states should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to the elimination of violence against women. 65 The Convention on the Elimination of All Forms of Discrimination Against Women, 1979 requires states parties to take all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. 66 The Human Rights Committee has stated that States parties should ensure that traditional, historical, religious or cultural attitudes are not to be used to justify violations of women s right to equality before the law and to equal enjoyment of all 60 Refugee Convention, Article 33(1). 61 Canada (Attorney General) v Ward [1993] 2 SCR 689, 724 (SC:Can); Refugee Appeal No /99 [2000] NZAR 545; [2000] INLR 608 at [62] to [67] (NZRSAA). Contrast Horvath v Secretary of State for the Home Department [2000] 3 WLR 381 (HL). 62 James C Hathaway, The Law of Refugee Status (Butterworths 1991) RWLG, Gender Guidelines for the Determination of Asylum Claims in the UK (July 1998) para 3.3; Immigration Appellate Authority, Asylum Gender Guidelines (November 2000) (UK) para 2B Jerome J Shestack, The Philosophical Foundations of Human Rights in Symonides (ed), Human Rights: Concept and Standards (Ashgate 2000) 31, Declaration on the Elimination of Violence Against Women, 1994, Article 4. See generally the preliminary report of the Special Rapporteur on Violence Against Women to the Commission on Human Rights, Preliminary Report Submitted by the Special Rapporteur on Violence Against Women, Its Causes and Consequences, Ms Radhika Coomaraswamy, in accordance with Commission on Human Rights Resolution 1994/45 (E/CN.4/1995/42, 22 November 1994) paras 63 to Convention on the Elimination of All Forms of Discrimination Against Women, 1979, Article 5(a). 13

14 rights under the International Covenant on Civil and Political Rights, Implicit in these requirements is an obligation to protect women from practices premised on assumptions of inferiority or traditional stereotypes. Practices such as female genital mutilation, suttee, bride burnings, forced marriages, rape and domestic violence are not only a violation of liberty and security of person, they are clearly dangerous and degrading to women and an expression of the inherently inferior standing which women hold in many societies. 68 The right to safety, dignity of life and freedom from cruel, inhuman or degrading treatment or punishment are not culturally derived, but stem from the common humanity of the individual. 69 Domestic violence 33. Physical and mental violence and ill treatment within the family is a wide-spread and often gender-specific form of harm. The fact that such treatment occurs within the family context does not mean that it will not constitute serious harm. Treatment which would constitute serious harm if it occurred outside the family will also constitute serious harm if it occurs within the family. As with other forms of harm, whether it constitutes persecution within the meaning of the Refugee Convention should be assessed on the basis of internationally recognised human rights standards and on the issue of causation. This issue is addressed under the heading For Reason Of. 70 Gender-based discrimination enforced through law 34. Gender-based discrimination is often enforced through law as well as through social practices. 71 A woman s claim to refugee status cannot be based solely on the fact that she is subject to a national policy or law to which she objects. 72 The claimant will need to establish that: (a) The policy or law is inherently persecutory; or 67 Human Rights Committee, General Comment 28: Equality of Rights Between Men and Women (2000) para Nahla Valji & Lee Anne De La Hunt, Gender Guidelines for Asylum Determination (National Consortium on Refugee Affairs 1999) p 18 (South Africa); Aguirre-Cervantes v INS 242F. 3d 1169 (9 th Cir. 2001) Ibid 18; Rosalyn Higgins, Problems and Process: International Law and How We Use It (Clarendon Press, Oxford 1995) Immigration Appellate Authority, Asylum Gender Guidelines (November 2000) (UK) para 2A.23; Heaven Crawley, Refugees and Gender: Law and Process (Jordans 2001) 129; UNHCR, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees (April 2001) para Heaven Crawley, Refugees and Gender: Law and Process (Jordans 2001) UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1979) para 65; UNHCR, Gender-Related Persecution (UNHCR Position Paper, 24 November 1999) 4; UNHCR, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees (April 2001) para 18; Immigration and Refugee Board, Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (November 25, 1996) (Canada)

15 (b) (c) (d) The policy or law is used as a means of persecution for one of the Convention reasons; or The policy or law, although having legitimate goals, is administered through persecutory means; or The penalty for non compliance with the policy or law is disproportionately severe. 73 War, civil war and civil unrest 35. The role of women in the biological and social reproduction of group identity places them in a position of particular vulnerability during war, civil war and civil unrest. This vulnerability and the political significance of gender during periods of war and civil unrest must be specifically recognised. 74 Woman may be direct participants as fighters or they may perform supportive roles such as intelligence gathering, providing food and nursing the wounded. 75 This may place them at risk of persecution for a Convention reason. Many woman may be targeted for persecution because of their race, nationality, clan membership or association. In addition, women may be targeted because as women they have a particular symbolic status Women are particularly vulnerable to persecution by sexual violence as a weapon of war. 77 Women may be specifically targeted for violence because of the symbolism of gender roles. The violation of women s bodies acts as a symbol of the violation of the country, political, ethnic or national group. 78 During war, women s bodies become highly symbolic and the physical territory for a broader political struggle in which sexual violence including rape is used as a military strategy to humiliate and demoralise an opponent; women s bodies become the battleground for pay backs, they symbolise the dominance of one group over another. 79 It is important to recognise that sexual violence and rape may be an actual weapon or a strategy of war itself, rather than just an expression or consequence. 80 In the context of armed conflict 73 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1979) paras 57 to 60; UNHCR, Gender- Related Persecution (UNHCR Position Paper, 24 November 1999) 4-6; UNHCR, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees (April 2001) para 18; Immigration and Refugee Board, Guideline 4: Women Refugee Claimants Fearing Gender- Related Persecution (November 25, 1996) (Canada) 11; Heaven Crawley, Refugees and Gender: Law and Process (Jordans 2001) Heaven Crawley, Refugees and Gender: Law and Process (Jordans 2001) Ibid Ibid Ibid Ibid Ibid Ibid

16 or civil war, the rape of women may also be about gaining control over other men and the group (national, ethnic, political) of which they are a part. 81 Internal protection 37. Refugee law was formulated to serve as a back-up to the protection one expects from the state of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable. 82 Where the risk of persecution stems from actions of a state agent or non-state agent that can and will be effectively suppressed by the national government, there is no need for surrogate international protection. As a result many countries take into account whether the claimant can avail him or herself of a safe place in the country of origin. This is sometimes called the internal protection or relocation principle or the internal flight alternative. 38. The protection analysis requires an objective and forward looking assessment of the situation in the part or parts of the country proposed as alternative or safe locations. 83 Before refugee status can be denied on the grounds that the refugee claimant has an internal protection alternative available allowing him or her to relocate, it must be possible to say that he or she can genuinely access domestic protection which is meaningful. Four minimum conditions must be satisfied. First, the proposed site of internal protection must safely and practically accessible. Second, the proposed site of internal protection must eliminate the well-founded fear of persecution; ie the place in question must be one in which the refugee claimant is not at risk of persecution for a Convention reason. Third, in the proposed site of internal protection the individual must not be exposed to a risk of other forms of Convention or non-convention-related serious harm, even if not rising to the level of persecution. Fourth, meaningful domestic protection implies not just the absence of risk of harm, it requires also the provision of basic norms of civil, political and socio-economic rights Heaven Crawley, Refugees and Gender: Law and Process (Jordans 2001) 90. Sexual violence is prohibited by Common Article 3 to the Geneva Conventions of 1949 and by the two Additional Protocols of The Rome Statute of the International Criminal Court, Articles 7 and 8 define crime against humanity and war crimes as including rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity. See also the decision of the International Criminal Court for the Former Yugoslavia, Prosecutor v Kunarac, Kovac and Vukovic (22 February 2001) on line at < 82 Canada (Attorney General) v Ward [1993] 2 SCR 689, 709 (SC:Can); Horvath v Secretary of State for the Home Department [2000] 3 WLR 379, 383C, 389B, 404F (HL). 83 UNHCR Position Paper, Relocating Internally as a Reasonable Alternative to Seeking Asylum - (The So-Called Internal Flight Alternative or Relocation Principle ) (February 1999) para James C Hathaway, The Law of Refugee Status (Butterworths 1991) 134 approved and applied in Butler v Attorney-General [1999] NZAR 205 (NZCA) and Al-Amidi v Minister for Immigration and Multicultural Affairs (2000) 177 ALR 506 (Fed Court of Australia); Refugee Appeal No /99 [2000] INLR 165 at [55] - [79]; Michigan Guidelines on the Internal Protection Alternative (April 1999) 21 Mich. J. Int l L. 131 and at < 16